State v. Davi, 17620

• Citation: 504 N.W.2d 844
• Decision Date: 21 July 1993
• Docket Number: No. 17620,17620
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Scott William DAVI, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 844

504 N.W.2d 844

STATE of South Dakota, Plaintiff and Appellee, v. Scott William DAVI, Defendant and Appellant.

No. 17620.

Supreme Court of South Dakota.

Argued Oct. 6, 1992.

Decided July 21, 1993.

Mark Barnett, Atty. Gen., Ann C. Meyer, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Patricia C. Riepel, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.

JOHNSON, Circuit Judge.

PROCEDURAL HISTORY AND ISSUES

Defendant Scott Davi (Davi) was found guilty of two counts of first degree murder, three counts of first degree burglary, and one count of first degree rape. In a subsequent court trial, the Honorable R.D. Hurd found Davi to be a habitual offender pursuant to SDCL 22-7-7. Davi received four life sentences without parole, a fifteen year sentence and a twenty year sentence, all sentences to run concurrently. Davi appeals, ¹ alleging trial court error in the following respects:

(1) Admission of hearsay evidence, denying Davi his right to confront witnesses and his right to a fair trial.

(2) Admission of prior bad act testimony, denying Davi a fair trial.

(3) Admission of hearsay statements that Diane was afraid of Davi and plain error in failing to give continuing admonitions and cautionary instructions regarding this evidence.

(4) Failure to grant motion for mistrial based on prosecutorial misconduct.

(5) Failure to grant motion for JNOV based on insufficient evidence to support the verdict.

(6) Error based on cumulative effect of trial court error.

We affirm the convictions on all counts but remand to the trial court with the direction that it vacate one of the sentences for first degree murder in light of Wilcox v. Leapley, 488 N.W.2d 654 (S.D.1992). ²

STATEMENT OF FACTS

Scott Davi (Davi) and Diane Davi (Diane) married in April 1988, and divorced in February 1990. Despite the divorce, the couple continued to date and sometimes slept together. Although Davi had relationships with other women, he became angry and jealous whenever Diane saw other men.

Diane severed the relationship in early October 1990, when she learned that Davi's live-in girlfriend, Maren Defoe, was pregnant. Davi would not let the relationship end. He followed her to work, waited by her car and made numerous phone calls to her apartment and her parents' home. Diane's annoyance at Davi's persistence eventually turned to fear.

During the weekend of October 20-22, 1990, Diane and her son Chad stayed at Diane's parents' house because of her growing fear of Davi. In the middle of the night on October 22, Diane's apartment was burglarized. The perpetrator slashed her waterbed and her son's. The only item missing from the apartment was a vibrator which Davi had given Diane as a gift and which she kept in a location known only to Diane and Davi. The box to this item was found on the floor and later thrown in the trash by Diane. Significantly, within ten days, investigators would find the vibrator box next to Diane's body.

Diane promptly obtained an ex parte domestic abuse protection order from Judge Robert Amundson who scheduled a hearing for November 5, 1990. Davi was served with the order the same day. Concerned about the consequences of the protection order, Davi contacted his parole officers, Pamela Jarding and Rick Holloway, who told Davi to stay away from Diane.

Despite the protection order, Diane continued to receive harassing and hang-up phone calls. On October 25, she called the police who came to her apartment to investigate the complaint. During the police visit Davi called her at least twice, once saying "Sorry, wrong number" and once ringing and then hanging up. The next day Diane asked her landlord to change the locks on her apartment because she knew Davi still had a key.

On October 29 at 4:00 a.m., in direct violation of the protection order, Davi confronted Diane as she entered her work place at Harold's Photography. He gave her a music box and said, "Diane, please don't send me back to prison."

Also during this time period, Davi told several people, including Sharon Ferrucci, Diane's close friend, that "he wasn't going to give Diane up" and "he did not want Diane to go." At the same time, he was very angry at Diane for rejecting him--angry enough to think about killing her. He told his ex-girlfriend, Kelly Davis, that he had purchased a crossbow with 170 pounds of pressure and that he was going to shoot Diane between the eyes with it. ³ He also told Davis that "he knew a man out of Sioux City that could or would kill Diane."

On November 1, Davi anonymously sent Diane another music box, twelve red roses and one yellow rose. On November 2, the day of her death, Diane worked a 4:30 a.m. to 11:00 a.m. shift and then returned to her apartment. Just after she left Harold's, Diane's co-worker, Becky Livingston, saw Davi's blue sports car drive by Harold's.

When Diane arrived at home she made several phone calls to friends and a nurse at the clinic. The last contact she made with anyone prior to her murder was at 12:05 p.m. Around 12:30 p.m. a co-worker, Richard Moerke, dropped by Diane's apartment. When he knocked on the door no one answered although he could hear noises inside the apartment. Moerke went around the back of the apartment and saw that the screen was pulled back from Diane's bedroom window but thought this was from the earlier break-in.

Diane's body was discovered on her bed about 5:30 that afternoon. She had been brutally beaten, raped and strangled. A few weeks later her family discovered that her wedding rings, given to her by Davi, were missing from the apartment, following the November 2 murder.

At the trial, Davi presented alibi evidence that he was at the Sioux Empire Mall at the time of the murder. However, two eyewitnesses had seen Davi sitting in his car outside Diane's apartment at two different times on November 2.

ISSUE I

WHETHER DAVI WAS DENIED HIS RIGHT TO A FAIR TRIAL AND HIS RIGHT TO CONFRONT WITNESSES WHEN THE TRIAL COURT ADMITTED HEARSAY EVIDENCE UNDER THE RESIDUAL HEARSAY RULE?

Davi argues that the trial court erred when it admitted hearsay statements and that admitting such statements violated his right to a fair trial and his right to confront witnesses. The trial court allowed various witnesses to testify to statements made by Diane during the two weeks preceding her death, admitting these statements under the residual hearsay exception, SDCL 19-16-35.

Several witnesses testified that Diane had reported to them that a vibrator, given to her by Davi and last used by her and Davi, was missing after the October 22 burglary, and that she had kept it in a secret location in her apartment. Several witnesses testified to statements by Diane that she believed Davi had burglarized her apartment, slashed the waterbeds and stolen the vibrator.

Officers Polzien and Menkevich testified to statements Diane made to them that she had been receiving hang-up and harassing phone calls and that she believed Davi had made them.

The trial court received into evidence Diane's handwritten petition for a domestic abuse protection order, in which she stated she believed Davi had burglarized her apartment and would continue to abuse her because he had "flipped." In addition, various witnesses testified to statements made by Diane that Davi had pleaded with her not to send him back to prison after the protection order had been issued.

Right to a Fair Trial

Although the hearsay rule provides that hearsay statements are inadmissible, the exceptions to the general rule are numerous. Hearsay which does not fall within one of the specific exceptions to the general rule may be admissible under SDCL 19-16-35, the residual hearsay rule, if certain conditions are met. ⁴

The primary requirement of SDCL 19-16-35 is that the declarant be unavailable to testify at trial. In addition, such hearsay must meet five criteria in order to be admissible under this rule:

(1) There must be sufficient "circumstantial guarantees of trustworthiness."

(2) The hearsay must provide evidence of a "material fact."

(3) The hearsay must be "more probative" than other available evidence.

(4) The "general purposes of these rules and the interests of justice" must be served by admission of the hearsay.

(5) The adverse party must have notice.

Matter of R.S.S., 474 N.W.2d 743, 749 (S.D.1991).

In addition to the express language of our statute, this Court has previously laid out several additional factors to be considered by the trial court in determining the admissibility of hearsay evidence:

(1) the written or oral nature of the evidence;

(2) the character of the statements;

(3) the declarants' relationship to the witness;

(4) the declarants' motivation in making the statements;

(5) the circumstances under which the declarants made the statements.

State v. Luna, 378 N.W.2d 229 (S.D.1985).

In reviewing the trial court's admission of hearsay evidence, we use an abuse of discretion standard. We will uphold the decision of the trial court unless it is clear that the court abused its discretion in admitting the hearsay evidence. "Although the ultimate decision to admit or not admit evidence is reviewable under the 'abuse of discretion' standard, the court's preliminary determination of whether the hearsay evidence is reliable will not be overturned unless it is clearly erroneous." Matter of R.S.S., supra, 474 N.W.2d at 749 (citing State v. Luna, supra ).

At a pretrial motion hearing the court determined the reliability of each statement, and then weighed the probative value of the statement against its prejudicial impact.

The court found the statements about the missing vibrator, which had been taken in the October 22 burglary, reliable because they were made to a police officer in his official capacity, and that similar statements to friends were reliable because of the personal nature of the subject matter. Additionally, the fact that the empty vibrator box was found next to...